Photo Violates Privacy, Canada Court Says

News photographers in Quebec who take pictures of ordinary people outdoors violate their subjects’ right to privacy, the Canadian Supreme Court ruled Thursday in a decision likely to have a chilling effect on the media.

The case centered on Gilbert Duclos, who took a photo of then-teenager Pascale-Claude Aubry relaxing on the steps of a Montreal building 10 years ago.

The now-defunct Montreal magazine Vice-Versa published it in an edition of essays about life in cities such as Montreal and Vancouver, and Aubry successfully sued, claiming that the photo provoked derision from her classmates.

“In our view, the artistic expression of the photograph, which was alleged to have served to illustrate contemporary urban life, cannot justify the infringement of the right to privacy it entails,” the court said in a 5-2 decision.

The privacy issue is one that judges, journalists and the public have long wrestled with the world over, especially regarding paparazzi treatment of celebrities.

But Thursday’s case in Canada dealt mainly with private rather than public figures. The court said that “certain aspects of private life of a person who is engaged in public activity . . . can become matters of public interest.”

The case echoed one in New York in 1982 in which Clarence Arrington ended up on the cover of the New York Times Magazine without his consent in a story about the black middle class. He lost his suit for invasion of privacy.

The Canadian case, in which an award to Aubry of about $1,500 was upheld, was fought on a privacy clause in Quebec’s human rights charter and thus pertained directly only to the province.

However, it is possible that the ruling could be used in interpreting laws on protecting the use of one’s image that apply in four of Canada’s other nine provinces. There is no comparable federal statute covering the whole country.

The court found that pictures of ordinary citizens who have not given their consent are not allowed, unless they are taken in the context of an overall crowd such as at a baseball game or a demonstration.

Duclos said after the court decision that it would make his professional life very difficult.